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HomeMy WebLinkAboutP-24-467 Mark Andy.pdf coU County of Fresno INTERNAL SERVICES DEPARTMENT Facilities•Fleet•Graphics- Purchasing*Security•Technology O� 185�O PROCUREMENT AGREEMENT Agreement Number P-24-467 August 27, 2024 Mark Andy Inc. 18081 Chesterfield Airport Road Chesterfield, MO 63005 The County of Fresno(County) hereby contracts with Mark Andy Inc. (Contractor)to provide Maintenance and Support for Check Printing Machines in accordance with the text of this agreement, and Attachment"A" by this reference made a part hereof. TERM: This Agreement shall become effective September 1, 2024 and shall remain in effect through August 31, 2027. EXTENSION: This Agreement may be extended for two(2) additional one (1)year periods by the mutual written consent of all parties. MINIMUM ORDERS: Unless stated otherwise there shall be no minimum order quantity. The County reserves the right to increase or decrease orders or quantities. CONTRACTOR'S SERVICES: Contractor shall perform the services as described in Attachment"A" attached, at the rates set forth in Attachment"A". ORDERS: Orders will be placed on an as-needed basis by Department of Social Services under this contract. PRICES: Prices shall be firm for the contract period. MAXIMUM: In no event shall services performed and/or fees paid under this Agreement be in excess of Forty-Two Thousand Dollars ($42,000.00). ADDITIONAL ITEMS: The County reserves the right to negotiate additional items to this Agreement as deemed necessary. Such additions shall be made in writing and signed by both parties. DELIVERY: The F.O.B. Point shall be the destination within the County of Fresno. All orders shall be delivered complete as specified. All orders placed before Agreement expiration shall be honored under the terms and conditions of this Agreement. DEFAULT: In case of default by Contractor, the County may procure the articles/services from another source and may recover the loss occasioned thereby from any unpaid balance due the Contractor or by any other legal means available to the County. The prices paid by County shall be considered the prevailing market price at the time such purchase is made. Inspection of deliveries or offers for delivery, which do not meet specifications, will be at the expense of Contractor. 333 W.Pontiac Way,Clovis,CA 93612/(559)600-7110 *The County of Fresno is an Equal Employment Opportunity Employer coU � County of Fresno INTERNAL SERVICES DEPARTMENT Facilities•Fleet•Graphics•Purchasing •Security•Technology O� 1�5 O PROCUREMENT AGREEMENT Agreement Number P-24-467 August 27, 2024 Mark Andy Inc. 18081 Chesterfield Airport Road Chesterfield, MO 63005 The County of Fresno(County) hereby contracts with Mark Andy Inc. (Contractor)to provide Maintenance and Support for Check Printing Machines in accordance with the text of this agreement, and Attachment"A" by this reference made a part hereof. TERM: This Agreement shall become effective September 1, 2024 and shall remain in effect through August 31, 2027. EXTENSION: This Agreement may be extended for two(2) additional one(1)year periods by the mutual written consent of all parties. MINIMUM ORDERS: Unless stated otherwise there shall be no minimum order quantity. The County reserves the right to increase or decrease orders or quantities. CONTRACTOR'S SERVICES: Contractor shall perform the services as described in Attachment"A" attached, at the rates set forth in Attachment"A". ORDERS: Orders will be placed on an as-needed basis by Department of Social Services under this contract. PRICES: Prices shall be firm for the contract period. MAXIMUM: In no event shall services performed and/or fees paid under this Agreement be in excess of Forty-Two Thousand Dollars ($42,000.00). ADDITIONAL ITEMS: The County reserves the right to negotiate additional items to this Agreement as deemed necessary. Such additions shall be made in writing and signed by both parties. DELIVERY: The F.O.B. Point shall be the destination within the County of Fresno. All orders shall be delivered complete as specified. All orders placed before Agreement expiration shall be honored under the terms and conditions of this Agreement. DEFAULT: In case of default by Contractor, the County may procure the articles/services from another source and may recover the loss occasioned thereby from any unpaid balance due the Contractor or by any other legal means available to the County. The prices paid by County shall be considered the prevailing market price at the time such purchase is made. Inspection of deliveries or offers for delivery,which do not meet specifications,will be at the expense of Contractor. 333 W.Pontiac Way,Clovis,CA 93612/(559)600-7110 *The County of Fresno is an Equal Employment Opportunity Employer PROCUREMENT AGREEMENT NUMBER: P-24-467 Page 2 Mark Andy Inc. August 27, 2024 INVOICING: An itemized invoice shall be sent to requesting County department in accordance with invoicing instructions included in each order referencing this Agreement. The Agreement number must appear on all shipping documents and invoices. Invoice terms shall be Net 45 Days. INVOICE TERMS: Net forty-five (45) days from the receipt of invoice. TERMINATION: The County reserves the right to terminate this Agreement upon thirty (30) days written notice to the Contractor. In the event of such termination, the Contractor shall be paid for satisfactory services or supplies provided to the date of termination. LAWS AND REGULATIONS: The Contractor shall comply with all laws, rules and regulations whether they be Federal, State or municipal, which may be applicable to Contractor's business, equipment and personnel engaged in service covered by this Agreement. AUDITS AND RETENTION: Terms and conditions set forth in the agreement associated with the purchased goods are incorporated herein by reference. In addition, the Contractor shall maintain in good and legible condition all books, documents, papers, data files and other records related to its performance under this contract. Such records shall be complete and available to Fresno County, the State of California, the federal government or their duly authorized representatives for the purpose of audit, examination, or copying during the term of the contract and for a period of at least three years following the County's final payment under the contract or until conclusion of any pending matter(e.g., litigation or audit), whichever is later. Such records must be retained in the manner described above until all pending matters are closed. LIABILITY: The Contractor agrees to: Pay all claims for damage to property in any manner arising from Contractor's operations under this Agreement. Indemnify, save and hold harmless, and at County's request defend the County, its officers, agents and employees from any and all claims for damage or other liability, including costs, expenses (including attorney's fees and costs), causes of action, claims or judgments resulting out of or in any way connected with Contractor's performance or failure to perform by Contractor, its agents, officers or employees under this Agreement, and from any and all costs and expenses (including attorney's fees and costs), damages, liabilities, claims, and losses occurring or resulting to any person, firm or corporation who may be injured or damaged by the performance, or failure to perform, of Contractor, its officers, agents, or employees under this Agreement. INSURANCE: Without limiting the COUNTY's right to obtain indemnification from CONTRACTOR or any third parties, CONTRACTOR, at its sole expense, shall maintain in full force and effect, the following insurance policies or a program of self-insurance, including but not limited to, an insurance pooling arrangement or Joint Powers Agreement(JPA)throughout the term of the Agreement: A. Commercial General Liability: Commercial general liability insurance with limits of not less than Two Million Dollars ($2,000,000) per occurrence and an annual aggregate of Four Million Dollars ($4,000,000). This policy must be issued on a per occurrence basis. Coverage must include products, completed operations, property damage, bodily injury, personal injury, and advertising injury. The Contractor shall obtain an endorsement to this policy naming the County of Fresno, its officers, agents, employees, and volunteers, individually and collectively, as additional insureds, but only insofar as the operations under this Agreement are concerned. Such coverage for additional insureds will apply as primary insurance and any other insurance, or self-insurance, maintained by the County is excess only and not contributing with insurance provided under the Contractor's policy. B. Automobile Liability: Automobile liability insurance with limits of not less than One Million Dollars ($1,000,000) per occurrence for bodily injury and for property damages. Coverage must include any auto used in connection with this Agreement. C. Professional Liability: Professional liability insurance with limits of not less than One Million Dollars ($1,000,000) per occurrence and an annual aggregate of Three Million Dollars ($3,000,000). If this is a claims-made policy, then (1)the retroactive date must be prior to the date on which services began P-24-467 Mark Andy.docx PROCUREMENT AGREEMENT NUMBER: P-24-467 Page 3 Mark Andy Inc. August 27, 2024 under this Agreement; (2)the Contractor shall maintain the policy and provide to the County annual evidence of insurance for not less than five years after completion of services under this Agreement; and (3) if the policy is canceled or not renewed, and not replaced with another claims-made policy with a retroactive date prior to the date on which services begin under this Agreement, then the Contractor shall purchase extended reporting coverage on its claims-made policy for a minimum of five years after completion of services under this Agreement. D. Worker's Compensation: Workers compensation insurance as required by the laws of the State of California with statutory limits. Additional Requirements Relating to Insurance: Contractor shall obtain endorsements to the Commercial General Liability insurance naming the County of Fresno, its officers, agents, and employees, individually and collectively, as additional insured, but only insofar as the operations under this Agreement are concerned. Such coverage for additional insured shall apply as primary insurance and any other insurance, or self-insurance, maintained by County, its officers, agents and employees shall be excess only and not contributing with insurance provided under Contractor's policies herein. This insurance shall not be cancelled or changed without a minimum of thirty (30) days advance written notice given to County. Contractor hereby waives its right to recover from County, its officers, agents, and employees any amounts paid by the policy of worker's compensation insurance required by this Agreement. Contractor is solely responsible to obtain any endorsement to such policy that may be necessary to accomplish such waiver of subrogation, but Contractor's waiver of subrogation under this paragraph is effective whether or not Contractor obtains such an endorsement. Within Thirty (30) days from the date Contractor signs and executes this Agreement, Contractor shall provide certificates of insurance and endorsement as stated above for all of the foregoing policies, as required herein, to the County of Fresno, dssasu(cDfresnocountyca.gov, stating that such insurance coverage have been obtained and are in full force;that the County of Fresno, its officers, agents and employees will not be responsible for any premiums on the policies; that such Commercial General Liability insurance names the County of Fresno, its officers, agents and employees, individually and collectively, as additional insured, but only insofar as the operations under this Agreement are concerned; that such coverage for additional insured shall apply as primary insurance and any other insurance, or self-insurance, maintained by County, its officers, agents and employees, shall be excess only and not contributing with insurance provided under Contractor's policies herein; and that this insurance shall not be cancelled or changed without a minimum of thirty(30) days advance,written notice given to County. Certificates of Insurance are to include the contract number at the top of the first page. In the event Contractor fails to keep in effect at all times insurance coverage as herein provided, the County may, in addition to other remedies it may have, suspend or terminate this Agreement upon the occurrence of such event. All policies shall be with admitted insurers licensed to do business in the State of California. Insurance purchased shall be purchased from companies possessing a current A.M. Best, Inc. rating of A FSC VII or better. COMING ON COUNTY PROPERTY TO DO WORK: Contractor agrees to provide maintain and furnish proof of Comprehensive General Liability Insurance with limits of not less than $500,000 per occurrence. INDEPENDENT CONTRACTOR: In performance of the work, duties and obligations assumed by Contractor under this Agreement, it is mutually understood and agreed that Contractor, including any and all of Contractor's officers, agents, and employees will at all times be acting and performing as an independent contractor, and shall act in an independent capacity and not as an officer, agent, servant, employee,joint venturer, partner, or associate of the County. Furthermore, County shall have no right to control or supervise or direct the manner or method by which Contractor shall perform its work and function. However, County shall retain the right to administer this Agreement so as to verify that Contractor is performing its obligations in accordance with the terms and conditions thereof. Contractor and County shall comply with all applicable P-24-467 Mark Andy.docx PROCUREMENT AGREEMENT NUMBER: P-24-467 Page 4 Mark Andy Inc. August 27, 2024 provisions of law and the rules and regulations, if any, of governmental authorities having jurisdiction over matters the subject thereof. Because of its status as an independent contractor, Contractor shall have absolutely no right to employment rights and benefits available to County employees. Contractor shall be solely liable and responsible for providing to, or on behalf of, its employees all legally-required employee benefits. In addition, Contractor shall be solely responsible and save County harmless from all matters relating to payment of Contractor's employees, including compliance with Social Security, withholding, and all other regulations governing such matters. It is acknowledged that during the term of this Agreement, Contractor may be providing services to others unrelated to the County or to this Agreement. NON-ASSIGNMENT: Neither party shall assign, transfer or sub-contract this Agreement nor their rights or duties under this Agreement without the written consent of the other party. AMENDMENTS: This Agreement constitutes the entire Agreement between the Contractor and the County with respect to the subject matter hereof and supersedes all previous negotiations, proposals, commitments, writings, advertisements, publications, Request for Proposals, Bids and understandings of any nature whatsoever unless expressly included in this Agreement. This Agreement supersedes any and all terms set forth in Contractor's invoice. This Agreement may be amended only by written addendum signed by both parties. INCONSISTENCIES: In the event of any inconsistency in interpreting the documents which constitute this Agreement, the inconsistency shall be resolved by giving precedence in the following order of priority: (1)the text of this Agreement(excluding Attachment"A") and (2)Attachment"A". GOVERNING LAWS: This Agreement shall be construed, interpreted and enforced under the laws of the State of California. Venue for any action shall only be in County of Fresno. ELECTRONIC SIGNATURES: The parties agree that this Agreement may be executed by electronic signature as provided in this section. A. An"electronic signature" means any symbol or process intended by an individual signing this Agreement to represent their signature, including but not limited to (1)a digital signature; (2) a faxed version of an original handwritten signature; or(3) an electronically scanned and transmitted (for example by PDF document) of a handwritten signature. B. Each electronic signature affixed or attached to this Agreement (1) is deemed equivalent to a valid original handwritten signature of the person signing this Agreement for all purposes, including but not limited to evidentiary proof in any administrative or judicial proceeding, and (2) has the same force and effect as the valid original handwritten signature of that person. C. The provisions of this section satisfy the requirements of Civil Code section 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2, Title 2.5, beginning with section 1633.1). D. Each party using a digital signature represents that it has undertaken and satisfied the requirements of Government Code section 16.5, subdivision (a), paragraphs (1)through (5), and agrees that each other party may rely upon that representation. This Agreement is not conditioned upon the parties conducting the transactions under it by electronic means and either party may sign this Agreement with an original handwritten signature. Please acknowledge your acceptance by returning all pages of this Agreement to my office via email or USPS. Please refer any inquiries in this matter to Yvette Jamison, Purchasing Technician, at 559-600-7116 or iamisy(aD-fresnocountyca.gov. P-24-467 Mark Andy.docx PROCUREMENT AGREEMENT NUMBER: P-24-467 Page 5 Mark Andy Inc. August 27, 2024 FOR THE COUNTY OF FRESNO Digitally signed by Riley Riley Blackburn Blackburn Date:2024.08.28 12:28:44-07'00' Riley Blackburn Purchasing Manager 333 W. Pontiac Way Clovis, CA 93612 P-24-467 Mark Andy.docx PROCUREMENT AGREEMENT NUMBER: P-24-467 Page 6 Mark Andy Inc. August 27, 2024 CONTRACTOR TO COMPLETE: Company: Mark Andy Inc. Type of Entity: E Individual �i Limited Liability Company E] Sole Proprietorship p Limited Liability Partnership EM Corporation Q General Partnership 18081 Chersterfield Airport Rd Chesterfield MO 63005 Address City State Zip 636-681-9284 debra.hymer@markandy.com TELEPHONE NUMBER FAX NUMBER E-MAIL ADDRESS Print Name& Debra Hymer Invoicing Speicialist Title: Print Name &Title: Signature: D� r'� Signature: ACCOUNTING USE ONLY ORG No.: 56108550 Account No.: 7295 Requisition No.: 5612500155 (7/2024) P-24-467 Mark Andy.docx PROCUREMENT AGREEMENT NUMBER: P-24-467 Attachment Page 1 of 5 Mark Andy Inc. August 27, 2024 A TTACHMENT 'A" Services P-24-467 Mark Andy.docx MOMLim� BMW P-24-467 Mark Andy Inc. Mark Andy Inc., 18081 Chesterfield Airport Road Chesterfield, MO 63005 USA Page 2 of 5 Tel+1 877-412-3629 Option#7, Option#3 August 27,2024 Fax+1 636-532-4701 Email:customercare@markandy.com ATTACHMENT"A" www.markandy.com Equipment Location: Bill to Location: COUNTY OF FRESNO-CA 118189 000 COUNTY OF FRESNO-CA 118189 000 205 WEST PONTIAC WAY 205 WEST PONTIAC WAY CLOVIS, CALIFORNIA 93612 CLOVIS, CALIFORNIA 93612 Contact: GOHAR SAMARJIAN Sales Representative: JENNIFER HOUCHINS Phone: (559)600-2229 Phone: +1 (636)681-9164 (Required on contract) Email:jennifer.houchins@markandy.com Agreement Number: 00009722 Start Date:09/01/2024 P.O.#: End Date: 08/31/2027 No Service Template Specified Labor Parts Preventive Maintenance Labor Machine Serial# Visits Discount Covered Discount Shipping Other Discounts Total Covered 3 total visits Consumable FD2052 2215 9 total Visits 1 pm kit and 1 pm visit 20% Not Parts:15% 14,000.00 3 visits per 25% each year Covered Rubber USD year Rollers:15% 9 total Visits 3 total visits Consumable 5K- Not Parts:15% 14,000.00 BRLNSK 01042 3 visits per 25% 1 pm kit and 1 pm visit 20% Covered Rubber USD year each year ° Rollers:15/o 9 total Visits 3 total visits Consumable Not Parts:15% 14,000.00 FD-2054 1191807 3 visits per 25% 1 pm kit and 1 pm visit 20% Covered Rubber USD year each year Rollers:15% Billing Annual 3 Y Total Cost 42,000.00 USD Labor visits on contract for on-site service calls and travel is included up to covered visits See chiller coverage details in terms and conditions line 13. Service Contract Page 1 of 4 Mark Andy,Inc. P-24-467 Mark Andy Inc.Attachment"A" Page 3 of 5 TOTAL AGREEMENT COST:60,000.00 USD *Any applicable sales tax will be added at time of invoice Debra Hymer Authorized Customer Name(Please Print) Authorized Mark Andy Inc.Name(Please Print) 1�� 8/27/2024 Authorized Customer Signature Date Authorized Mark Andy Inc.Signature Date Contract must be signed,dated,and received by Company within 30 days of Start Date or pricing/offer is no longer valid. Service Contract Page 2 of 4 Mark Andy,Inc. P-24-467 Mark Andy Inc. Page 4 of 5 The terms and conditions on the following pages form a part of this agreement.By signature on agreement,Customer confirms reading,understanding,and agreeing to all such terms and conditions.All additional and/or different terms are expressly rejected by Company and are excluded from this agreement.No modification to this agreement shall be binding on Company unless agreed to in writing by a corporate officer of Company. Equipment condition It is understood that the equipment covered in this agreement is in good operating condition at the time the contract starts.Good operating condition is defined as currently able to operate and all safety features intact according to product manufacturer's specifications with no unauthorized modifications.If machine is found not to be in good operating condition upon first onsite service event,an estimate will be provided to bring the machine up to good operating condition by Company and any previously agreed upon start date becomes null and void.This work must be performed to Company's satisfaction before contract can take effect.For new contracts or contracts that have lapsed more than 90 days,it is possible that an equipment inspection will need to be performed by an engineering representative from the company prior to actuation of the contract Equipments within Labor hours covered include on-site service visits for emergency and standard calls outside of preventive maintenance visits.Travel is included for the covered hours and preventive maintenance visits in the agreement price quoted.Preventive maintenance is an evaluation only and does not include parts installation. Preventive Maintenance visits require a 15 day advance notice for scheduling.All visits,including those cancelled by Customer within one business day of scheduled visit,have a one hour labor minimum.All service calls must be initiated by calling 1-877-412-3629. 1.Products."Product(s)"shall mean all parts and services,including but not limited to:evaluation,maintenance,repair,installation,training,support,and software. 2.Payment.Unless otherwise agreed,terms of payment will be net thirty(30)days following the date of Seller's invoice.Buyer will pay Seller for any sales,properly, use,excise or other duty,tax,charge or fee now or hereafter imposed due to any sale or delivery of any Product hereunder,unless otherwise exempt therefrom. Notwithstanding anything to the contrary in the Agreement,Products will be supplied by Seller to Buyer at Seller's facility or Buyer Location(s),or to a contract or common carrier at Seller's facility,for shipment to Buyer as mutually agreed. 3.Payment Default.If Buyer fails to make payment when due,or its financial responsibility becomes otherwise impaired,or if Buyer is otherwise in default of its obligations hereunder,Seller may,among other remedies,refuse to supply Products or any services,except for receipt of cash with order and/or payment in full of all outstanding charges,and/or charge to Buyer a monthly late charge on any delinquent balance equal to the maximum charge permitted by law,and/or suspend Seller's performance under this Agreement and/or terminate this Agreement.Buyer will pay Seller all fees and costs,including reasonable legal fees and expenses required to collect Buyer's delinquent account or otherwise enforce this Agreement. 4.Cancellation.This agreement may be canceled by Company or Customer at any time by ninety(90)days advance notice.Such notice for termination must be provided in writing to the other party,and the contract shall terminate ninety(90)days from the date such notice is received by the other party(the'Termination Date").If the Termination Date is prior to the end of the Initial Term(or any renewal term),the Customer shall receive a prorated credit for days between the Termination Date and the end of the initial Term(or any renewal term),less a Cancellation fee of 33% a. If Customer cancels this Agreement before the end of the Initial Term,Company has right to charge Customer on a time and materials basis for all services if the cost of such services is greater than the cancellation penalty fee. b. The Company reserves the right to cancel this Agreement for non-payment of invoices Should non-payment occur,the company will provide written notice to the customer requesting full payment of the past due amounts within ten(10)business days.If no payment is received within 10 day business days,the Company may,at its discretion,cancel this Agreement and Customer agrees to pay either the contract cancellation penalty fees,or the sum total of service rendered to date at Company's then-current list price. 5.Specifications:Warranties:Remedies.Seller warrants that any services performed hereunder will be rendered in a professional and workmanlike fashion and if any services fail to conform to this warranty,Seller shall,at its option,conform such services to this warranty,at no cost to Buyer,or refund the lesser of the portion of the purchase price paid for such nonconforming services or the cost of the actual related damages.SELLER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING PARTS PROVIDED TO BUYER HEREUNDER OTHER THAN THOSE EXPRESSLY STATED HEREIN.THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER.Buyer's exclusive remedy for the unexcused failure to perform services under any service contract in a timely manner,regardless of cause,including negligence,shall be a credit by Seller in the amount of the actual price paid for the failed delivery or services.The foregoing constitutes Buyers exclusive remedy and Seller's sole obligation with respect to any such claim.All claims of Buyer related to any Products or services shall be made in writing within ten(10)days after delivery thereof,or any such failed delivery. Failure of Buyer to give such notice shall constitute a waiver by Buyer of any such claims and a defense for Seller therefrom. 6.Contingencies and Force Majeure.All quoted delivery and service dates are approximate.Seller shall not be liable for any damage as a result of any delay due to any cause beyond Seller's reasonable control,including but not by way of limitation any act of God,pandemic,embargo or other governmental act,regulation or request,fire,flood,storm,accident,sabotage,explosion,strike,slow down,war,riot,act of terror,delay in transportation,delayed delivery by supplier,inability to obtain necessary labor and materials,and act or omission of Buyer,including,without limitation,delay in providing technical information,and other documentation to Seller.In the event of any such delay,the date of delivery or services shall be extended for a period equal to the time lost by reason of delay,plus the delay reasonably incident to the resumption of normal work.Seller will conduct any allocations among its own,and its customers',requirements in a fair and reasonable manner. 7.Limitation on Liability.Seller will not be liable to Buyer for any incidental,consequential,indirect,special or exemplary damages(including waste,lost profits, sales or other similar damages)arising in connection with this Agreement without regard to the nature of the claim or the underlying theory or cause of action (whether in contract,tort,strict liability,equity or any other theory of law)on which such damages are based. 8.Indemnity,Each Party will indemnify and hold harmless the other Party from and against any and all costs,fees(including reasonable legal fees and expenses), damages,liabilities and claims arising from the injury,illness or death of the indemnifying Party's employees,or any third parties,in any way related to any activities performed in connection with the Products or services supplied by Seller under this Agreement,unless such injury,illness,or death is claimed to have been caused by,resulted from,or was in any way connected with the intentional act or gross negligence of the Party to be indemnified. 9.Confidentiality.This Agreement,and all pricing and other information furnished by either Party to the other in connection therewith are the proprietary and confidential information("Information")of the disclosing Party.The receiving Party will keep all such Information confidential but may disclose such Information to(a) its employees solely to the extent necessary to perform the receiving Party's obligations hereunder;and(b)to governmental agencies to obtain necessary permits or, upon prompt written notice to the disclosing Party,to comply with any governmental order to disclose such Information,provided the receiving Party informs such employees or governmental agencies of the confidential nature of such Information.The forgoing confidentiality obligation shall not apply to(i)information that was already known to,or developed independently by,the receiving Party,in each case as evidenced by written records;(ii)information that was or hereafter comes within the public domain through no breach of the receiving Party;(iii)information the receiving Party lawfully obtains from a third Party under conditions permitting its disclosure to others;or(iv)information disclosed pursuant to judicial action or Government regulations provided the receiving Party promptly notified the disclosing Party with written notice of any such request or requirement(which shall in any event be made within 5 business days thereof)so that the disclosing Party has an opportunity to seek a protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. 10.Governing Law and Dispute Resolution,This Agreement and these terms and conditions shall be governed and construed according to the laws of the State of Missouri,USA,without reference to principles of conflicts of laws.The rights and obligations of the Parties hereunder shall not be governed by the provisions of the 1980 U.N.Convention on Contracts for the International Sale of Goods.For any dispute,controversy or claim arising out of or relating to this Agreement,or the breach thereof,including claims for equitable relief and requests for interim measures,the Parties shall first discuss in good faith alternative dispute resolution options.Should alternative dispute resolution fail,the Parties agree that any legal action or proceeding will be brought exclusively in the Federal or State courts in and for St.Louis County,Missouri,USA.The Parties waive any objection to jurisdiction and venue of any action instituted as provided herein and agree not to assert any defense based on lack of jurisdiction or venue. 11.Assignment and Notice.This Agreement(i)may not be assigned without the prior written consent of the other Party,except to an affiliate of Seller;and(ii)will inure to the benefit of,and be binding upon,the successors and permitted assigns of the Parties.Notices hereunder shall be in writing and deemed given on the date hand delivered,mailed or electronically transmitted to the receiving Party at the address in the preamble above. 12,General.The entire agreement is contained herein.Any other or different terms or conditions in any purchase orders,Buyer's website agreements or other documents will be deemed null and void.Modifications and waivers hereof are not binding unless in writing and a waiver will apply solely to the instance for which Service Contract Page 3 of 4 Mark Andy,Inc. P-24-467 Mark Andy Inc.Attachment"A" Page 5 of 5 sought.Headings are for convenience only,and shall not be used to interpret the Agreement.The word"including"and variations thereof used herein are deemed to be followed by the words"without limitation."Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party will not be applied in the interpretation of this Agreement. 13.Excluded Items. a. Any third party parts,service or labor not arranged/purchased directly by Company.Any parts of a consumable nature are not included in the agreement (rubber items,blades,chemicals,"supply"items,etc)unless otherwise stated.Some examples of excluded items are defined below:Presses(Traditional and DI Presses):Ink and Water Rollers(Rubber),Form Rollers,Blanket Rollers,Gaskets(Rubber),Belts(Feeder,Timing,V),Bottle packing,Doctor blade, Lamps(all),Bulbs,Blankets,Brushes,Rotary Joints,Hoses(Rubber,Plastic,other),Suckers,Filters(All),Covers,Cleaning Supplies,Chemistry Products, Software Upgrades,Hardware Upgrades CTP(Computer to Plate Devices):Rollers(All),Gaskets(Rubber),Belts(Feeder,Timing,V),Bottle packing, Lamps(all),Bulbs,Brushes,Hoses(Rubber,Plastic,other),Filters(All),Covers,Cleaning Supplies,Chemistry Products,Software Upgrades,Hardware Upgrades Finishing Equipment(Post Press):Blades,Crimper Pliers,Rollers(Rubber),Trimmer Knives/Anvils,Stapler/Stitcher Heads,Seperator Pads, Feed Tires,Lamps(all),Bulbs,Drill Bits,Drilling Blocks,Bill/Coin Changers,Dies and Punch Sets,Cutter Wheels,Heat Strips,Sealing Wires, Stitcher/Stapler Heads,Staple,Rubber Vacuum mats,Brushes,Hoses(Rubber,Plastic,other).Suckers,Filters(All).Cleaning Supplies,Chemistry Products,Software Upgrades,Hardware Upgrades As noted above,this is not a comprehensive list but a representative of types of products excluded under contract unless otherwise noted as attachment to agreement. b. Chillers unless otherwise specified under"Other discounts"on page 1.When chiller coverage is listed on page 1 the following conditions apply,chiller deductible included in contract covers chiller replacement.Chiller parts and labor repair not to exceed$5,000.00 by Mark Andy or sub-contractor.Repair parts and labor charges above$5,000.00 to be covered by customer or chiller deductible paid for chiller replacement c. Shipping charges are not covered on service parts orders unless specified within contract entitlements on page 1 of agreement under"Shipping".Customer will be charged current shipping rates based on weight and shipping method requested or agreed upon with Mark Andy.If customer does not request a shipping method,ground shipping by preferred Mark Andy carrier will be selected.Customer may provide their shipping preference and carrier ID on service parts orders or will be invoiced for shipping charges by Mark Andy. Service Contract Page 4 of 4 Mark Andy,Inc.